What are the statistics behind sexual harassment at work?
The Society for Human Resource Management (SHRM) survey found that 11 percent of non-management employees said they had experienced some form of sexual harassment in the past 12 months, yet 76 percent of those said they did not report it for reasons including fear of retaliation or a belief that nothing would change.
Although most employers have a policy on sexual harassment and a complaint and grievance procedure for victims of harassment in their workplace, some employees are not aware of it, and many policies and procedures inadequately prevent harassing conduct. Employers ultimately bear high costs in defending sexual harassment actions. In 2019 alone, employers paid out $68.2 million to employees alleging sexual harassment violations.
With the sweeping power of the #MeToo movement encouraging victims to share their stories and the consequences employers and perpetrators now experience when sexual harassment allegations come to light, the landscape of harassment law is bound to change—and hopefully for the better.
If an employee does experience sexual harassment, there are several important factors to keep in mind.
What does federal law consider actionable sexual harassment?
The U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that interferes with one’s employment or work performance or is so frequent and severe that it creates a “hostile or offensive work environment.” Simple teasing, offhand comments, or isolated incidents may not be considered actionable harassment.
The victim, as well as the harasser, may be a woman or a man, and the victim does not have to be the opposite sex from the harasser. The harasser may be the victim’s supervisor, an agent of the employer, a supervisor in another department, a co-worker, or a non-employee vendor or customer. The victim can also include anyone affected by the offensive conduct, but regardless the harasser’s conduct must be unwelcome. The victim does not have to suffer economic injury or discharge for the harassment to be actionable.
What is the sexual harassment law in Texas?
The law applies to private employers with 15 or more employees as well as government and labor organizations. Similar to the EEOC’s definition, the TWC holds that sexual harassment “can be unwelcome advances, requests for sexual favors, or physical touching of a sexual nature.”
How is a sexual harassment claim initiated?
- Go through the complaint and grievance procedure maintained by his or her employer.
- File a claim with the state Texas Workforce Commission’s Civil Rights Division (TWC-CRD)
- File a claim with the federal EEOC.
Filing a claim with both agencies is unnecessary but permissible as long as the employee indicates to one of the agencies that he or she wants it cross-filed with the other agency.
There are strict deadlines in which employees must file their sexual harassment charge. To preserve a claim under state law, an employee must file with the TWC-CRD within 180 days of the alleged harassment. The deadline for filing an EEOC charge is 300 days after the last date of alleged harassment.
Although an employee may wish to consult an attorney prior to filing a claim, it is not necessary to have an attorney file a claim with either agency, and the employee should be careful not to miss the stringent deadlines to file.
If sexual harassment escalates to sexual assault or rape, such harassment goes beyond workplace discrimination and should be reported to the police or other law enforcement agencies as a criminal act.
What happens after filing an EEOC charge?
The EEOC may:
- ask both parties to take part in mediation.
- ask the employer to provide a written response to the charge before giving the charge to an investigator.
- dismiss the charge if it is untimely filed or the EEOC does not have jurisdiction.
If, at the conclusion of the EEOC’s investigation, it determines that sexual harassment did not occur, the charging party will be given a “Notice of Right to Sue,” which permits the employee to file a lawsuit.
If, however, the EEOC determines sexual harassment did occur, the agency will try to reach a voluntary settlement with the employer, and if a settlement cannot be reached, will refer the case to either the EEOC’s legal staff or the Department of Justice to determine whether the agency should file a lawsuit on the employee’s behalf.
If the EEOC decides not to file a lawsuit, the employee is given the “Notice of Right to Sue.”
Sexual harassment claims may be brought in either state or federal court, although a case filed in state court under federal law such as Title VII may be subject to removal to federal court if the employer requests to move the case.
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